
[Federal Register: May 14, 2010 (Volume 75, Number 93)]
[Rules and Regulations]
[Page 27205-27216]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my10-11]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 105, 107, 171, 173, 174, 176, 177, and 179

[Docket No. PHMSA-2009-0289 (HM-233A)]
RIN 2137-AE39


Hazardous Materials: Incorporation of Special Permits Into
Regulations

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is
amending the Hazardous Materials Regulations to incorporate provisions
contained in certain widely used or longstanding special permits that
have an established safety record. Special permits allow a company or
individual to package or ship a hazardous material in a manner that
varies from the regulations so long as an equivalent level of safety is
maintained. The revisions in this final rule are intended to provide
wider access to the regulatory flexibility offered in special permits
and eliminate the need for numerous renewal requests, thus reducing
paperwork burdens and facilitating commerce while maintaining an
appropriate level of safety.

DATES: Effective Dates: The effective date of these amendments is
October 1, 2010.
    Voluntary Compliance: Voluntary compliance with the provisions of
this final rule is authorized June 14, 2010.

FOR FURTHER INFORMATION CONTACT: Eileen Edmonson or Dirk Der Kinderen,
Office of Hazardous Materials Standards, (202) 366-8553, or Diane
LaValle, Office of Hazardous Materials Special Permits and Approvals,
(202) 366-4535, Pipeline and Hazardous Materials Safety Administration
(PHMSA), 1200 New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:
I. Background
II. Overview of Amendments
III. Summary Review of Amendments
IV. Regulatory Analyses and Notices

I. Background

    The Pipeline and Hazardous Materials Safety Administration (PHMSA)
is amending the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-
180) to incorporate certain requirements based on existing special
permits (SPs) issued by PHMSA under 49 CFR Part 107, Subpart B
(Sec. Sec.  107.101 to 107.127). A special permit sets forth
alternative requirements--or a variance--to the requirements in the HMR
in a way that achieves a safety level at least equal to the safety
level required under the regulations or that is consistent with the
public interest. Congress expressly authorized DOT to issue these
variances in the Hazardous Materials Transportation Act of 1975.
    The HMR generally are performance oriented regulations, which
provide the regulated community with a certain amount of flexibility in
meeting safety requirements. Even so, not every transportation
situation can be anticipated and built into the regulations. Innovation
is a strength of our economy and the hazardous materials community is
particularly strong at developing new materials and technologies and
innovative ways of moving materials. Special permits enable the
hazardous materials industry to quickly, effectively, and safely
integrate new products and technologies into production and the
transportation stream. Thus, special permits provide a mechanism for
testing new technologies, promoting increased transportation efficiency
and productivity, and ensuring global competitiveness. Hazardous
materials transported under the terms of a special permit must achieve
a level of safety at least equal to the level of safety achieved when
transported under the HMR. Implementation of new technologies and
operational techniques enhances safety because the authorized
operations or activities may achieve a greater level of safety than
currently required under the regulations. Special permits also reduce
the volume and complexity of the HMR by addressing unique or infrequent
transportation situations that would be difficult to accommodate in
regulations intended for use by a wide range of shippers and carriers.
    PHMSA conducts ongoing reviews of special permits to identify
widely used and longstanding special permits with an established safety
record for conversion into regulations of broader applicability.
Converting these special permits into regulations reduces paperwork
burdens and facilitates commerce while maintaining an acceptable level
of safety. Additionally, adoption of special permits as rules of
general applicability provides wider access to the benefits and
regulatory flexibility of the provisions granted in the special
permits. Factors that influence whether or not a specific special
permit is a candidate for regulatory action include the safety record
for hazardous materials transported or operations conducted under a
special permit; potential broad application of a special permit;
suitability of provisions in the special permit for incorporation into
the HMR; rulemaking activity in related areas; and agency priorities.
    Several of the special permits addressed in this final rule have
hundreds of party status grantees. Party status is granted to a person
who would like to offer for transport or transport a hazardous
material, or perform an operation in association with a hazardous
material in the same manner as the original applicant. Several special
permits addressed in this final rule provide for the manufacture,
marking, sale and use of certain packagings for transportation of
hazardous materials. These manufacturing special permits are issued to
the packaging manufacturer and provide for use of the packagings by
hundreds and possibly thousands of distributors and users.
    The amendments in this final rule will eliminate the need for
approximately 510 current grantees to reapply for renewal of 44 special
permits every four years and for PHMSA to process those renewal
applications. These amendments also apply to any special permits this
agency issues during the development of this final rule whose
provisions are identical in every respect to those described in the
rulemakings issued under this docket. To emphasize this, we preface the

[[Page 27206]]

description of the affected special permits with the wording
``include'' or ``includes'' to clarify that additional special permits
other than those specifically listed in this final rule may be
incorporated under these amendments.
    Incorporation of the special permits into the HMR also eliminates a
significant paperwork burden. As a condition of a special permit issued
by PHMSA and depending on the provisions of the special permit, a copy
of each special permit must be: (1) Maintained at each facility where
an operation is conducted or a packaging is manufactured under a
special permit; (2) maintained at each facility where a package is
offered or re-offered for transportation under a special permit; and
(3) in some cases, carried aboard each transport vehicle used to
transport a hazardous material under a special permit.

II. Notice of Proposed Rulemaking

    On December 22, 2009, PHMSA published a notice of proposed
rulemaking (NPRM; 75 FR 68004) proposing to incorporate a number of
special permits into the HMR. The proposed revisions included the
following:
     Authorize cargo vessel transportation for salvage
cylinders containing damaged or leaking packagings under Sec.  173.3.
     Allow liquid contents in quantities greater than 10% of
the capacity in a mechanical displacement meter prover to the extent
that draining of the meter prover is impracticable under Sec.  173.5a.
     Authorize the transport of waste Division 4.2, Packing
Group (PG) I material and Division 5.2 (organic peroxide) material in
lab packs under Sec.  173.12.
     Allow the use of alternative outer packagings for waste
lab packs and require use of UN standard steel or plastic drums (at the
PG I performance level) as the outer packaging for waste Division 4.2,
PG I material and as an overpack for Division 6.1, PG I, Hazard Zone A
material under Sec.  173.12.
     Except waste hazardous materials, packaged in lab packs
and meeting additional conditions, and Division 6.1 PG I (Hazard Zone
A) material packaged in accordance with Sec.  173.226(c) from certain
segregation and marking requirements under Sec.  173.12.
     Allow variation in the packing method for packagings
prepared in accordance with Sec.  173.13.
     Authorize, for certain hazardous materials, external
visual inspection of the rupture disc in a non-reclosing pressure
relief device of a rail tank car without requiring removal of the
rupture disc Sec.  173.31.
     Authorize the transportation of certain specially designed
radiation detectors containing a Division 2.2 (non-flammable gas)
material under a new section Sec.  173.310.
     Allow a greater gross weight limitation for packages used
for the transport of aerosols for purposes of recycling or disposal
under Sec.  173.306.
     Allow rail tank cars to exceed the gross weight on rail
limitations upon approval from the Federal Railroad Administration
(FRA) under Sec.  179.13.
     Eliminate several requirements for submitting duplicate
copies of applications for special permit, party status, or renewal
when the applications are submitted electronically.
     Require certification of understanding of a special permit
for persons submitting an application for party status to a special
permit.
    The following companies and organizations submitted comments on the
NPRM:

    (1) Alcoa (Alcoa)
    (2) All-Pak (All-Pak)
    (3) Arkema, Inc. (Arkema)
    (4) The Association of American Railroads (AAR)
    (5) Baker Petrolite Corporation (BPC)
    (6) The Chlorine Institute (CI)
    (7) E.I. DuPont de Nemours and Company (Dupont)
    (8) Fibre Box Association (FBA)
    (9) National Association of Chemical Distributors (NACD)
    (10) Utility Solid Waste Activities Group (USWG)
    (11) Western Regional Group (WRG)

    The commenters generally supported the proposals in the NPRM. Some
commenters opposed the incorporation of certain special permits. A
detailed discussion of the comments follows. (Note that comments beyond
the scope of this rulemaking are not addressed in this final rule.)

III. Summary Review of Amendments

A. Salvage Cylinders

    Damaged or leaking cylinders containing a Division 2.1, 2.2, 2.3,
or 6.1, or Class 3 or 8 material may be overpacked in a salvage
cylinder and transported by motor vehicle for repair or disposal (see
Sec.  173.3(d)). In the NPRM, PHMSA proposed to permit salvage
cylinders to also be transported by cargo vessel for purposes of repair
or disposal, consistent with the provisions of DOT-SP 14168. One
commenter (CI) supported the proposal; no commenters opposed the
proposal. We are adopting the amendment as proposed.

B. Meter Provers

    A mechanical displacement meter prover (meter prover) is a
mechanical device, permanently mounted on a truck or trailer,
consisting of a piping system that is used to calibrate the accuracy
and performance of meters that measure the quantity of product being
pumped or transferred at facilities such as drilling locations,
refineries, tank farms and loading racks. Section 173.5a(b) excepts
meter provers from specification packaging requirements in Part 178 of
the HMR provided the meter provers conform to certain conditions. In a
final rule published January 24, 2005, under Docket No. RSPA-03-16370
(HM-233) (70 FR 3302), the Research and Special Programs
Administration, the predecessor agency to PHMSA, incorporated several
special permits concerning meter provers into Sec.  173.5a. As provided
by Sec.  173.5a(b), a meter prover is excepted from the specification
packaging requirements when, among other criteria, the liquid content
of the meter prover does not exceed 10% of capacity (see Sec.
173.5a(b)(2)(i)). PHMSA subsequently issued a special permit to allow
transport of meter provers containing flammable liquids in quantities
greater than 10% of capacity when conditions make draining of the
liquid impracticable. This special permit was based on information that
(1) facilities or equipment used to drain and reinject the meter
provers may not be readily available while in the field; (2)
alternatives such as using DOT specification cargo tanks as meter
provers or accompanying a meter prover with DOT specification cargo
tanks filled with liquids drained from the meter prover are cost
prohibitive; and (3) there is a record of safe transportation of meter
provers under provisions from special permits previously adopted into
the HMR. In the NPRM, PHMSA proposed to allow meter provers to retain
flammable liquid contents in quantities greater than 10% of capacity to
the extent that draining the contents to 10% or less is impracticable.
The affected special permits include DOT-SP 14405. No commenters
addressed this proposal; therefore, in this final rule, PHMSA is
adopting the provision as proposed.
    Additionally, for consistency with use of the acronym ``MAWP''
(meaning maximum allowable working pressure) in other provisions of the
HMR, in Sec.  173.5a, paragraph (b)(2)(iv), in this final rule, PHMSA
is revising the wording ``maximum service pressure'' to read ``MAWP.''
Finally, for greater understanding and use of the provisions

[[Page 27207]]

of Sec.  173.5a(b), we are adding a definition for ``Mechanical
displacement meter prover'' in Sec.  171.8. The definition reads:
``Mechanical displacement meter prover means a mechanical device used
in the oilfield service industry consisting of a pipe assembly that is
used to calibrate the accuracy and performance of meters that measure
the quantities of a product being pumped or transferred at facilities
such as drilling locations, refineries, tank farms, and loading
racks.''

C. Lab Packs

    Certain waste materials are excepted from specification packaging
requirements when transported in packagings (``lab packs'') that
conform to the requirements specified in paragraph (b) of Sec.  173.12.
Currently, the outer packaging of the lab packs must be a specification
UN 1A2 or UN 1B2 metal drum, UN 1D plywood drum, UN 1G fiber drum, or
UN 1H2 plastic drum tested to the PG III performance level. In the
NPRM, PHMSA proposed to allow the use of a UN 4G fiberboard box made of
at least 500 psig burst strength fiberboard that is tested and marked
to at least the PG II performance level as an alternative outer
packaging for a lab pack. The affected special permits include DOT-SP
10791, 12927, 13285, 13937, 14510, and 14817. PHMSA also proposed to
allow the use of a UN 11G fiberboard intermediate bulk container (IBC)
and a UN 11HH2 composite IBC (with a flexible plastic inner receptacle
for solids loaded or discharged by gravity) as alternative outer
packaging for a lab pack. The affected special permits include DOT-SP
12296, 12668, 12682, 12749, and 12826.
    Certain hazardous materials packaged in lab packs conforming to
Sec.  173.12(b) are excepted from segregation requirements in Parts
174, 176, and 177 of the HMR provided the materials conform to the
segregation requirements in Sec.  173.12(e). In the NPRM, PHMSA
proposed to except certain additional waste hazardous materials in lab
packs and non-bulk packagings from segregation and overpack marking
requirements consistent with the provisions of DOT-SP 13192. We first
issued DOT-SP 13192 in 2001 to consolidate earlier special permits that
allowed different combinations of incompatible materials, including
waste materials, to be transported together on the same transport
vehicle. The waste materials are subject to safety control measures
designed to mitigate the risks presented by these materials, such as
quantity limitations, additional packaging, and segregation
requirements. Revised editions of DOT-SP 13192 have authorized the
transport of additional hazardous materials not currently authorized
for transport under Sec.  173.12. These hazardous materials include
Division 4.2 PG I material (subject to more stringent outer packaging
requirements), Division 5.2 (organic peroxide) material, and Division
6.1 PG I (Hazard Zone A) material (for purposes of exception from
segregation requirements only). Experience with DOT-SP 13192 suggests
that when certain incompatible hazardous materials are properly
packaged in lab packs and other authorized non-bulk packages, the
possibility of these materials commingling in an incident is greatly
reduced, if not eliminated, because of the integrity of the packagings
and, for liquids, because of the requirement to include a sufficient
amount of chemically compatible absorbent material to absorb the
contents.
    Two commenters (Dupont, NACD) supported adoption of these
amendments. Thus, in this final rule, PHMSA is authorizing the
transport of Division 4.2 PG I material and Division 5.2 (organic
peroxide) material in lab packs, and the transport of waste Division
6.1 PG I (Hazard Zone A) material with other waste materials if
packaged in accordance with Sec.  173.226(c) of the HMR and further
packaged in an overpack of a specification UN steel or plastic drum at
the PG I performance level. In addition, for greater clarity, we are
making several conforming amendments to the segregation requirements in
Parts 174, 176, and 177 to specify that the requirements do not apply
to Division 6.1 PG I (Hazard Zone A) material transported in
conformance with Sec.  173.12(e).

D. Excepted Packaging

    Conditions for transport of hazardous materials in non-
specification packaging are outlined in Sec.  173.13. Currently, for
packaging of liquids, the liquid must be placed in an inner packaging
which is then placed in a hermetically sealed barrier bag that is
wrapped in chemically compatible absorbent material and then placed in
a metal can. PHMSA has issued a number of special permits that allow an
alternative configuration in which the inner packaging for liquids is
first wrapped in chemically compatible absorbent material and then
placed in a hermetically sealed barrier bag which is then placed in a
metal can. In the NPRM, PHMSA proposed to incorporate this alternative
method of packing inner packagings for liquids into Sec.  173.13. This
proposal was drawn from the same provision in the following special
permits: DOT-SP 7891, 8249, 9168, 10672, 10962, 10977, 11248, 12401,
13355.
    One commenter (All-Pak) opposed adoption of this amendment. All-
Pak's understanding from the preamble of the December 2009 NPRM is that
a number of existing special permits would be cancelled through the
adoption of this brief amendment into Sec.  173.13. All-Pak does not
support termination of the affected special permits and believes the
special permits should remain in effect because they include additional
provisions, such as stronger packaging requirements and authorization
to transport additional materials.
    All-Pak is correct that the provisions outlined in the listed
special permits are broader in scope and more varied than the
requirements of Sec.  173.13. In this final rule, PHMSA is amending
Sec.  173.13 to allow the alternative packaging configuration in which
the inner packaging for liquids may first be wrapped in absorbent
material and then placed in a hermetically sealed barrier bag prior to
placement in a metal can. Based on the comments presented and our
review of this section, the affected special permits are not being
incorporated in total under this final rule.

E. Visual Inspection of Rail Tank Cars

    The HMR specify requirements for use of rail tank cars transporting
hazardous materials in Sec.  173.31. Paragraph (d) of this section
requires an offeror to perform an external visual inspection of a rail
tank car containing a hazardous material or a residue of a hazardous
material prior to offering it for transportation. As part of the
examination, paragraph (d)(1)(vi) requires a careful inspection of the
rupture (frangible) disc in non-reclosing pressure relief devices for
corrosion or damage that may alter the intended operation of the
device. Under special permits DOT-SP 11761 and 11864, the rupture disc
is not required to be removed prior to visual inspection if the tank
car contains residue of a Class 8 (corrosive), PG II or III material
with no subsidiary hazard (at no more than three percent of capacity of
the tank car) or the residue of Class 9 molten sulfur. Based on the
safety record of use of the special permits, in the December 2009 NPRM,
we proposed to revise paragraph (d)(1)(vi) to exclude inspection of the
underside of the rupture disc on rail tank cars containing residue of a
Class 8 (corrosive), PG II or III material with no subsidiary hazard or
containing the residue of a Class 9 elevated temperature material. For
purposes of

[[Page 27208]]

the HMR, ``residue'' means the hazardous material remaining in a
packaging after its contents have been unloaded to the maximum extent
possible (see Sec.  171.8). Additionally, PHMSA has interpreted
``unloaded to the maximum extent possible'' to mean that the hazardous
material has ceased to flow out of the packaging's unloading device.
Operations under these special permits have demonstrated these
materials are present in the tank car in insufficient quantity and
physical form to present a risk from a release of the material through
a rail tank car pressure relief device due to the failure of a rupture
disc during transportation.
    Two commenters (CI, Dupont) supported the adoption of this
proposal. One commenter (AAR) opposed the adoption of this provision on
the basis that if the rupture disc is not removed, there is no way to
tell whether: (1) A gasket is present; (2) the seats of the disc and
the safety vent mounting flange are in proper condition; and (3) the
fitting has the required surge protection. AAR provided a summary of
data on non-accident releases involving rail tank cars with residue
Class 8, PG II or III material (with no subsidiary hazard) and Class 9
material over a five-year period (January 2005 to January 2010).
Analysis of the data indicates six non-accident releases in which the
cause listed is the corrosion of the rupture disc. AAR noted these six
non-accident releases could have been prevented had the rupture disc
been inspected before the residue tank car was returned.
    AAR added that:

    some discs have their ratings on their side and some have
rating[s] around the outer top circumference, which * * * can be
hidden by the retainer device. How does one insure the disc is rated
properly? The current regulations require the shipper to ensure that
all fittings are in proper condition for transportation and it is
not clear how that is possible without an inspection of the rupture
disc.

    PHMSA appreciates AAR's concern regarding the risks of transporting
these materials in rail cars with pressure relief devices that may have
corroded components. However, there are other measures for identifying
possible corrosion problems, including conducting a thorough inspection
of the pressure relief device and rupture disc prior to loading of the
rail tank car and implementing operating procedures for maintenance and
inspection of the components. PHMSA's review of hazardous materials
incident reports for the five-year period January 2005-January 2010
identified one report of an incident involving release of a hazardous
material due to the corrosion of a rupture disc associated with the
transport of a residue amount of corrosive material (hydrochloric acid
solution). PHMSA and the Federal Railroad Administration (FRA) continue
to believe that there is only a small possibility of release from a
tank car transporting a residue amount of a Class 8, PG II or III or
Class 9 elevated temperature material caused by corrosion of the
rupture disc. Therefore, in this final rule, PHMSA is adopting the
amendment as proposed.

F. Radiation Detectors

    Radiation detectors are used for measuring the intensity of
ionizing radiation. The devices typically contain a gas filled tube or
ion chamber where radiation converts the gas into ions and the rate at
which these ions are collected is measured as electric current. These
radiation detectors are often used as integral parts of medical test
equipment, such as a dose calibrator. The HMR require the pressurized
gas contained in these devices to be transported in DOT specification
cylinders or non-specification containers conforming to Sec.  173.302
or Sec.  173.306.
    In the NPRM, PHMSA proposed to authorize in new Sec.  173.310 the
transportation of radiation detectors (also described as radiation
sensors, electron tube devices, and ionization chambers) containing a
gas, specifically, certain Division 2.2 (non-flammable) compressed
gases contained in electron tubes that are non-DOT specification,
metal, single trip, inside containers that may or may not be
hermetically sealed or equipped with a pressure relief device, based on
the use of several special permits. As proposed, the inside metal
containers must be welded and designed to prevent fragmentation upon
impact. The electron tubes may have up to a maximum design pressure of
4.83 MPa (700 psig) and up to a maximum water capacity of 355 fluid
ounces (641 cubic inches); and must have a burst pressure of not less
than three times the design pressure if equipped with a pressure relief
device, and not less than four times the design pressure if not
equipped with a pressure relief device. Each radiation detector must be
placed in a strong outer packaging capable of withstanding a minimum
drop test of 1.2 meters (4 feet) without breaking the device or
rupturing the outer packaging, or if shipped as part of equipment, that
the equipment provide equivalent protection. Also, each shipment of
these devices must be accompanied by emergency response information
that must identify those receptacles not fitted with a pressure relief
device, and provide guidance on how to manage all the detectors if they
are exposed to fire. When transported in conformance with these
conditions, PHMSA proposed to except radiation detectors from the
specification packaging requirements of the HMR and, except when
transported by air, from labeling and placarding requirements of the
HMR. The affected special permits include DOT-SP 9030, 9940, 10407,
12131, 12415, 13026, 13109 and 13244.
    One commenter (USWAG) specified support for incorporation of DOT-SP
9940. PHMSA is adopting the amendment as proposed.

G. Aerosols for Recycling or Disposal

    Exceptions from the requirements of the HMR to transport a material
as a fully regulated compressed gas are specified for limited
quantities of compressed gases (including in aerosol containers) in
Sec.  173.306. Conditions for exception include a 30 kg (66 pound)
gross weight limitation for outer packagings. Under DOT-SP 12842, PHMSA
authorized the transport of limited quantities of certain Division 2.1
(flammable) and Division 2.2 (non-flammable) gases in aerosol
containers packaged in strong outer packagings with gross weights of up
to 500 kg (1,100 pounds). PHMSA allowed the increase in gross weight
for the purpose of packaging discarded empty, partially used, and full
aerosol containers to be transported to a recycling or disposal
facility. As part of the conditions for the special permit, each
aerosol container must be fitted with a cap to protect the valve stem
or the valve stem must be removed to prevent the accidental discharge
of the contents. Based on the safe record of transportation of these
aerosol containers under this special permit; and based on the
condition that some limited quantity materials reclassed as ORM-D
material, as authorized under Sec.  173.306, are not subject to the 30
kg (66 pound) gross weight limitation when unitized in packages and
offered for transportation in accordance with Sec.  173.156 of the HMR,
in the December 2009 NPRM, PHMSA proposed, in Sec.  173.306(k), to
authorize the highway transport of aerosol containers conforming to
Sec.  173.306 in strong outer packagings not to exceed 500 kg (1,100
pounds) when transported for the purpose of recycling or disposal. The
affected special permits include DOT-SP 12842.
    Two commenters (Alcoa, USWAG) supported this amendment.
Additionally, Alcoa suggested revising paragraph (k)(2) relating to the
requirement to protect against

[[Page 27209]]

accidental discharge to more closely align with DOT-SP 12842. Alcoa
stated:

    we believe it preferable to take a more ``performance based''
approach to the provision requiring protection from accidental
discharge in order to allow other equally effective means (as
compared to only protective caps or removal of the valve stem) to be
employed. In this regard, we suggest that the provision concerned
should instead read: ``Each aerosol container is protected against
accidental discharge, such as by a protective cap over the valve
stem, or, if without a protective cap, by removal of the valve stem,
or any other measure that prevents accidental discharge.''

Alcoa also suggested removing the limitation that motor vehicle
transport must be by private or contract motor carrier or common
carrier under exclusive use found in paragraph (k)(3) so there no
longer is a need for DOT-SP 11396.

    The proposed requirement to protect against accidental discharge is
based on the specific conditions outlined in DOT-SP 12842, that each
aerosol container must be shipped with a protective cap to protect the
valve stem, or if no protective cap is available, the valve stem must
be removed from the can. The safe history of use of the special permit
is due in large part to the conditions of the special permit. Alcoa did
not provide specific examples of alternative methods to protect against
accidental discharge. Without evidence of other measures to prevent
accidental discharge that provide an equivalent level of safety to
protective caps or removal of the valve stem, PHMSA is reluctant to
adopt a performance standard.
    PHMSA also disagrees with the suggestion to remove the limitation
for private or contract motor carrier or common carrier under exclusive
use, thereby eliminating the need for DOT-SP 11396. The modal
limitation provides a greater level of safety by requiring a greater
level of control over shipments.
    In this final rule, PHMSA is adopting the provision as proposed in
the NPRM. Note that PHMSA is revising the language in Sec.
173.306(k)(1) to clarify that the gross weight limitation of 500 kg
(1,100 pounds) applies to the strong outer packaging and its contents,
not just the strong outer packaging as written in the NPRM.

H. Rail Tank Car Gross Weight Limitation

    The HMR include limitations on rail tank car capacity and gross
weight in Sec.  179.13. Currently, this section limits rail tank cars
to a maximum capacity of 34,500 gallons (130,597 L) and a gross weight
of 263,000 pounds (119,295 kg). PHMSA has granted several special
permits to allow tank cars to transport up to 286,000 pounds (129,727
kg) gross weight on rail subject to certain conditions. In the NPRM,
PHMSA proposed to revise this section to provide rail carriers with
relief from the rail tank car gross weight limitation subject to review
of an approval application submitted to the Associate Administrator for
Safety, FRA. Providing for an approval process will expedite movement
of rail tank cars by simplifying regulatory procedures and eliminating
the time constraints associated with the mandatory comment period
required for special permit applications. The affected special permits
include DOT-SP 11241, 11654, 11803, 12423, 12561, 12613, 12768, 12858,
12903, 13856, 13936, 14004, 14038, 14442, 14505, 14520, 14570, and
14619.
    Three commenters (AAR, CI, Dupont) supported adoption of this
amendment. However, the commenters suggested that the final rule should
include specific procedures for obtaining the specified approval.
    We disagree. FRA has established guidelines for applications for
authority to transport rail tank cars that are over specified gross
weight limitations in a document entitled ``Maximizing Safety and
Weight.'' The document instructs applicants to consider safety-related
items for both new construction and for existing equipment that include
the following topics: (1) Puncture resistance; (2) controlling
longitudinal loading; (3) structural-worthiness; (4) track-worthiness;
(5) service equipment; (6) service reliability and maintenance
management; and (7) maximizing safety and weight. This document may be
reviewed at http://www.fra.dot.gov/Pages/1800.shtml. In addition, FRA
plans to develop risk-based guidance for persons applying for an
approval to authorize a gross weight greater than 263,000 pounds and up
to 286,000 pounds.
    Therefore, in this final rule, PHMSA is adopting the amendment as
proposed.

I. Revisions to Procedures

    Procedures for serving documents in PHMSA proceedings are
established in 49 CFR Part 105. In accordance with these procedures, a
non-resident of the United States must designate an agent and file the
designation with PHMSA. In this final rule, the phrase ``agent for
service of process'' is added as a synonym for the word ``agent'' in
paragraph (b) of Sec.  105.40(b) to clarify that this term includes an
agent for service of process as this phrase is used elsewhere in
PHMSA's procedural regulations in 49 CFR Parts 105, 106, and 107. In
addition, in this final rule, we revise the definition for ``Special
Permit'' in 49 CFR Part 107 to permit the Associate Administrator of
Hazardous Materials Safety to delegate signature authority at the
Office Director level. The same revision to the definition for
``Special Permit'' is made in Sec.  171.8.
    Currently, an application for a special permit must be submitted in
duplicate no matter the method of submission, whether mail, fax, or e-
mail (see Sec.  107.105). In this final rule, PHMSA is revising Sec.
107.105(a)(1) to clarify that a duplicate copy of the application for a
special permit is not required when the application is submitted
electronically by e-mail. PHMSA is also revising Sec.  107.105(a)(2) to
require an e-mail address if available and the DOT registration number,
if applicable. Application procedures for party status to a special
permit are set forth in Sec.  107.107. In this final rule, PHMSA is
revising Sec.  107.107(b)(1) to clarify that a duplicate copy of the
application for party status is not required when the application is
submitted electronically by e-mail and is revising paragraph Sec.
107.107(b)(3) to require an e-mail address if available and the DOT
registration number, if applicable. In addition, PHMSA will require an
applicant for party status to provide a justification of the need for
party status to the special permit and to certify that the applicant
has read and understands the provisions of the special permit for party
status.
    Application procedures for renewal of a special permit are set
forth in Sec.  107.109. In this final rule, PHMSA is revising Sec.
107.109(a)(1) to state that a duplicate copy of an application to renew
a special permit is not required when the application is submitted
electronically by e-mail.

IV. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C.
5103(b) which authorizes the Secretary to prescribe regulations for the
safe transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a)
authorizes the Secretary of Transportation to issue a special permit
from a regulation prescribed in 5103(b), 5104, 5110, or 5112 of the
Federal Hazardous Materials Transportation Law to a person
transporting, or causing to be transported, hazardous material in a way
that achieves a safety level at least

[[Page 27210]]

equal to the safety level required under the law, or consistent with
the public interest, if a required safety level does not exist. The
final rule amends the regulations by incorporating provisions from
certain widely used and longstanding special permits that have
established a history of safety and which may, therefore, be converted
into the regulations for general use.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action
under section 3(f) and was not reviewed by the Office of Management and
Budget (OMB). The final rule is not considered a significant rule under
the Regulatory Policies and Procedures order issued by the Department
of Transportation [44 FR 11034].
    In this final rule, PHMSA amends the HMR to incorporate
alternatives this agency has permitted under widely used and
longstanding special permits with established safety records that we
have determined meet the safety criteria for inclusion in the HMR.
Incorporation of these special permits into regulations of general
applicability will provide shippers and carriers with additional
flexibility to comply with established safety requirements, thereby
reducing transportation costs and increasing productivity. In addition,
the final rule will reduce the paperwork burden on industry and this
agency resulting from putting an end to the need for renewal
applications for special permits. Taken together, the provisions of
this final rule will promote the continued safe transportation of
hazardous materials while reducing transportation costs for the
industry and administrative costs for the agency.

C. Executive Order 13132

    This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
final rule would preempt state, local and Indian tribe requirements but
does not propose any regulation that has substantial direct effects on
the states, the relationship between the national government and the
states, or the distribution of power and responsibilities among the
various levels of governments. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply. Federal hazardous
material transportation law, 49 U.S.C. 5101-5128, contains an express
preemption provision (49 U.S.C 5125(b)) preempting state, local and
Indian tribe requirements on certain covered subjects. Covered subjects
are:
    (1) The designation, description, and classification of hazardous
materials;
    (2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; or
    (5) The designing, manufacturing, fabricating, inspecting, marking,
maintaining, reconditioning, repairing, or testing a package, container
or packaging component that is represented, marked, certified, or sold
as qualified for use in transporting hazardous material in commerce.
    This final rule addresses covered subject items (2), (3), and (5)
and would preempt any State, local, or Indian tribe requirements not
meeting the ``substantively the same'' standard. Federal hazardous
materials transportation law provides at 49 U.S.C. 5125(b)(2) that if
PHMSA issues a regulation concerning any of the covered subjects, PHMSA
must determine and publish in the Federal Register the effective date
of Federal preemption. The effective date may not be earlier than the
90th day following the date of issuance of the final rule and not later
than two years after the date of issuance. The effective date of
federal preemption will be 90 days from publication of the final rule
in this matter in the Federal Register.

D. Executive Order 13175

    This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have tribal implications and does not impose substantial
direct compliance costs on Indian tribal governments, the funding and
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities.
An agency must conduct a regulatory flexibility analysis unless it
determines and certifies that a rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule incorporates into the HMR certain widely used special
permits. Incorporation of these special permits into regulations of
general applicability will provide shippers and carriers with
additional flexibility to comply with established safety requirements,
thereby reducing transportation costs and increasing productivity.
Therefore, PHMSA certifies this rule will not have a significant
economic impact on a substantial number of small entities.
    This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered.

F. Paperwork Reduction Act

    PHMSA has an approved information collection under OMB Control
Number 2137-0051, ``Rulemaking, Special Permits, and Preemption
Requirements.'' This final rule may result in a decrease in the annual
burden and costs under this information collection due to proposed
changes to incorporate provisions contained in certain widely used or
longstanding special permits that have an established safety record.
    Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it has been approved by OMB
and displays a valid OMB control number. Section 1320.8(d), title 5,
Code of Federal Regulations requires that PHMSA provide interested
members of the public and affected agencies an opportunity to comment
on information and recordkeeping requests.
    This final rule identifies a revised information collection request
that PHMSA will submit to OMB for approval based on the requirements in
this final rule. PHMSA has developed burden estimates to reflect
changes in this final rule. PHMSA estimates that the information
collection and recordkeeping burden of this final rule is as follows:
    OMB Control No. 2137-0051:
    Net Decrease in Annual Number of Respondents: 520.
    Net Decrease in Annual Responses: 55.
    Net Decrease in Annual Burden Hours: 560.
    Net Decrease in Annual Burden Costs: $22,400.
    Requests for a copy of this information collection should be
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous
Materials

[[Page 27211]]

Standards (PHH-11), Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001,
Telephone (202) 366-8553.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document may be used to cross-reference this action with the
Unified Agenda.

H. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more to either state, local or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), requires Federal agencies to consider the
consequences of major Federal actions and to prepare a detailed
statement on actions that significantly affect the quality of the human
environment.
    The hazardous materials regulatory system is a risk management
system that is prevention-oriented and focused on identifying a hazard
and reducing the probability and quantity of a hazardous materials
release. Hazardous materials are categorized by hazard analysis and
experience into hazard classes and packing groups. The regulations
require each shipper to class a material in accordance with these
hazard classes and packing groups; the process of classifying a
hazardous material is itself a form of hazard analysis. Further, the
regulations require the shipper to communicate the material's hazards
by identifying the hazard class, packing group, and proper shipping
name on shipping papers and with labels on packages and placards on
transport vehicles. Thus, the shipping paper, labels, and placards
communicate the most significant findings of the shipper's hazard
analysis. A hazardous material is assigned to one of three packing
groups (PGs) based upon its degree of hazard, from a high hazard PG I
material to a low hazard PG III material. The quality, damage
resistance, and performance standards for the packagings authorized for
the hazardous materials in each PG are appropriate for the hazards of
the material transported.
    Hazardous materials are transported by aircraft, vessel, rail, and
highway. The potential for environmental damage or contamination exists
when packages of hazardous materials are involved in transportation
accidents. The need for hazardous materials to support essential
services means transportation of highly hazardous materials is
unavoidable. However, these shipments frequently move through densely
populated or environmentally sensitive areas where the consequences of
an incident could be loss of life, serious injury, or significant
environmental damage. The ecosystems that could be affected by a
hazardous materials release during transportation include atmospheric,
aquatic, terrestrial, and vegetal resources (for example, wildlife
habitats). The adverse environmental impacts associated with releases
of most hazardous materials are short-term impacts that can be greatly
reduced or eliminated through prompt clean-up of the accident scene.
    There are no significant environmental impacts associated with the
amendments in this final rule. We are making clarifications and changes
to certain HMR requirements to include methods for packaging and
transporting hazardous materials that are currently permitted under
widely used special permits with established safety records for
inclusion in the HMR. The process through which safety permits are
issued requires the applicant to demonstrate that the alternative
transportation method or packaging proposed provides an equivalent
level of safety as that provided in the HMR. Implicit in this process
is that the special permit must provide an equivalent level of
environmental protection as that provided in the HMR. Thus,
incorporation of the special permits as regulations of general
applicability maintains the existing environmental protections built
into the HMR.

J. Privacy Act

    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70, pages 19477-78), or at http://
www.regulations.gov.

List of Subjects

49 CFR Part 105

    Administrative practice and procedure, Hazardous materials
transportation.

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.

49 CFR Part 174

    Hazardous materials transportation, Radioactive materials, Rail
carriers, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 176

    Hazardous materials transportation, Maritime carriers, Radioactive
materials, Reporting and recordkeeping requirements.

49 CFR Part 177

    Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.

49 CFR Part 179

    Hazardous materials transportation, Railroad safety, Reporting and
recordkeeping requirements.

0
In consideration of the foregoing, we are amending 49 CFR Chapter I as
follows:

PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL
PROCEDURES

0
1. The authority citation for part 105 is revised to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.


Sec.  105.40  [Amended]

0
2. In Sec.  105.40, in the paragraph (b), introductory text, after the
word ``agent'', add the words and punctuation ``, also known as ``agent
for service of process''.''

[[Page 27212]]

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
3. The authority citation for part 107 is revised to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4
(28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L.
104-134 section 31001; 49 CFR 1.45, 1.53.


0
4. In Sec.  107.1, revise the definition of ``Special permit'' to read
as follows:


Sec.  107.1  Definitions.

* * * * *
    Special permit means a document issued by the Associate
Administrator, or other designated Department official, under the
authority of 49 U.S.C. 5117 permitting a person to perform a function
that is not otherwise permitted under subchapters A or C of this
chapter, or other regulations issued under 49 U.S.C. 5101 et seq.
(e.g., Federal Motor Carrier Safety routing requirements). The terms
``special permit'' and ``exemption'' have the same meaning for purposes
of subchapters A or C of this chapter or other regulations issued under
49 U.S.C. 5101 through 5128.
* * * * *

0
5. In Sec.  107.105, revise paragraph (a) to read as follows:


Sec.  107.105  Application for special permit.

    (a) General. Each application for a special permit or modification
of a special permit must be written in English and submitted for timely
consideration at least 120 days before the requested effective date and
must--
    (1)(i) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety (Attention: Special Permits, PHH-31),
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, East Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001;
    (ii) Be submitted in duplicate with any attached supporting
documentation by facsimile (fax) to: (202) 366-3753 or (202) 366-3308;
or
    (iii) Be submitted by electronic mail (e-mail) to:
Specialpermits@dot.gov. Electronic submissions need not be submitted in
duplicate;
    (2) State the name, street and mailing addresses, e-mail address
(if available), US DOT Registration number (if applicable), and
telephone number of the applicant. If the applicant is not an
individual, also state the name, street and mailing addresses, e-mail
address (if available), and telephone number of an individual
designated as an agent of the applicant for all purposes related to the
application;
    (3) Include a designation of agent of service for process in
accordance with Sec.  105.40 of this part if the applicant is not a
resident of the United States; and
    (4) For a manufacturing special permit, include a statement of the
name and street address of each facility when manufacturing under the
special permit will occur.
* * * * *

0
6. In Sec.  107.107, revise paragraphs (b)(1), (b)(3), (b)(4), and
(b)(5) to read as follows:


Sec.  107.107  Application for party status.

* * * * *
    (b) * * *
    (1)(i) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety (Attention: Special Permits, PHH-31),
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, East Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001;
    (ii) Be submitted in duplicate with any attached supporting
documentation by facsimile (fax) to: (202) 366-3753 or (202) 366-3308;
or
    (iii) Be submitted by electronic mail (e-mail) to:
Specialpermits@dot.gov. Electronic submissions need not be submitted in
duplicate;
* * * * *
    (3) State the name, street and mailing addresses, e-mail address
(if available), US DOT Registration number (if applicable), and
telephone number of the applicant. If the applicant is not an
individual, also state the name, street and mailing addresses, e-mail
address (if available), and telephone number of an individual
designated as an agent of the applicant for all purposes related to the
application. In addition, each applicant must state why party status to
the special permit is needed and must submit a certification of
understanding of the provisions of the special permit to which party
status is being requested;
    (4) Include a designation of agent of service for process in
accordance with Sec.  105.40 of this part if the applicant is not a
resident of the United States; and
    (5) For a Class 1 material that is forbidden for transportation by
aircraft except under a special permit (see Columns 9A and 9B in the
table in 49 CFR 172.101), include a certification by the applicant for
party status to a special permit to transport such Class 1 material, on
passenger-carrying or cargo-only aircraft with a maximum certificated
takeoff weight of less than 12,500 pounds, that no person within the
categories listed in 18 U.S.C. 842(i) will participate in the
transportation of the Class 1 material.
* * * * *

0
7. Revise Sec.  107.109 to read as follows:


Sec.  107.109  Application for renewal.

    (a) Each application for renewal of a special permit or renewal of
party status to a special permit must--
    (1)(i) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety (Attention: Special Permits, PHH-31),
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, East Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001;
    (ii) Be submitted in duplicate with any attached supporting
documentation by facsimile (fax) to: (202) 366-3753 or (202) 366-3308;
or
    (iii) Be submitted by electronic mail (e-mail) to:
Specialpermits@dot.gov. Electronic submissions need not be submitted in
duplicate;
    (2) Identify by number the special permit for which renewal is
requested;
    (3) State the name, street and mailing addresses, e-mail address
(if available), US DOT Registration number (if applicable), and
telephone number of the applicant. If the applicant is not an
individual, also state the name, street and mailing addresses, e-mail
address (if available), and telephone number of an individual
designated as an agent of the applicant for all purposes related to the
application. In addition, each applicant for renewal of party status
must state why party status to the special permit is needed and must
submit a certification of understanding of the provisions of the
special permit to which party status is being requested;
    (4) Include either a certification by the applicant that the
original application, as it may have been updated by any application
for renewal, remains accurate and complete; or include an amendment to
the previously submitted application as is necessary to update and
assure the accuracy and completeness of the application, with
certification by the applicant that the application as amended is
accurate and complete; and
    (5) Include a statement describing all relevant shipping and
incident experience of which the applicant is aware in connection with
the special permit since its issuance or most recent renewal. If the
applicant is aware of no incidents, the applicant must so certify. When
known to the applicant, the statement should indicate the approximate
number of shipments made

[[Page 27213]]

or packages shipped, as the case may be, and number of shipments or
packages involved in any loss of contents, including loss by venting
other than as authorized in subchapter C; and
    (6) When a Class 1 material is forbidden for transportation by
aircraft, except under a special permit (see Columns 9A and 9B in the
table in 49 CFR 172.101), include a certification by the applicant for
renewal of party status to a special permit to transport such Class 1
material, on passenger-carrying or cargo-only aircraft with a maximum
certificated takeoff weight of less than 12,500 pounds, that no person
within the categories listed in 18 U.S.C. 842(i) will participate in
the transportation of the Class 1 material.
    (b) If at least 60 days before an existing special permit expires
the grantee files an application for renewal that is complete and
conforms to the requirements of this section, the special permit will
not expire until final administrative action on the application for
renewal has been taken.

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
8. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410, section 4 (28 U.S.C. 2461 Note); Pub. L. 104-134
section 31001.


0
9. In Sec.  171.8, add a new definition for ``Mechanical displacement
meter prover'' and revise the definition for ``Special permit'' to read
as follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    Mechanical displacement meter prover means a mechanical device used
in the oilfield service industry consisting of a pipe assembly that is
used to calibrate the accuracy and performance of meters that measure
the quantities of a product being pumped or transferred at facilities
such as drilling locations, refineries, tank farms, and loading racks.
* * * * *
    Special permit means a document issued by the Associate
Administrator, or other designated Department official, under the
authority of 49 U.S.C. 5117 permitting a person to perform a function
that is not otherwise permitted under subchapters A or C of this
chapter, or other regulations issued under 49 U.S.C. 5101 et seq.
(e.g., Federal Motor Carrier Safety routing requirements). The terms
``special permit'' and ``exemption'' have the same meaning for purposes
of subchapters A or C of this chapter or other regulations issued under
49 U.S.C. 5101 through 5128.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS

0
10. The authority citation for part 173 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.


0
11. In Sec.  173.3, revise paragraph (d)(6) to read as follows:


Sec.  173.3  Packaging and exceptions.

* * * * *
    (d) * * *
    (6) Transportation is authorized by motor vehicle and cargo vessel
only.
* * * * *

0
12. In Sec.  173.5a, revise paragraph (b) to read as follows:


Sec.  173.5a  Oilfield service vehicles and mechanical displacement
meter provers.

* * * * *
    (b) Mechanical displacement meter provers. (1) A mechanical
displacement meter prover, as defined in Sec.  171.8 of this
subchapter, permanently mounted on a truck chassis or trailer and
transported by motor vehicle is excepted from the specification
packaging requirements in part 178 of this subchapter provided it--
    (i) Contains only the residue of a Division 2.1 (flammable gas) or
Class 3 (flammable liquid) material. For liquids, the meter prover must
be drained to not exceed 10% of its capacity or, to the extent that
draining of the meter prover is impracticable, to the maximum extent
practicable. For gases, the meter prover must not exceed 25% of the
marked pressure rating;
    (ii) Has a water capacity of 3,785 L (1,000 gallons) or less;
    (iii) Is designed and constructed in accordance with chapters II,
III, IV, V and VI of ASME Standard B31.4 (IBR, see Sec.  171.7 of this
subchapter);
    (iv) Is marked with the MAWP determined from the pipe component
with the lowest pressure rating; and
    (v) Is equipped with rear-end protection as prescribed in Sec.
178.337-10(c) of this subchapter and 49 CFR 393.86 of the Federal Motor
Carrier Safety Regulations.
    (2) The description on the shipping paper for a meter prover
containing the residue of a hazardous material must include the phrase
``RESIDUE: LAST CONTAINED * * * '' before the basic description.
    (3) Periodic test and inspection. (i) Each meter prover must be
externally visually inspected once a year. The external visual
inspection must include at a minimum: checking for leakage, defective
fittings and welds, defective closures, significant dents and other
defects or abnormalities which indicate a potential or actual weakness
that could render the meter prover unsafe for transportation; and
    (ii) Each meter prover must be pressure tested once every 5 years
at not less than 75% of design pressure. The pressure must be held for
a period of time sufficiently long to assure detection of leaks, but in
no case less than 5 minutes.
    (4) In addition to the training requirements in subpart H, the
person who performs the visual inspection or pressure test and/or signs
the inspection report must have the knowledge and ability to perform
them as required by this section.
    (5) A meter prover that fails the periodic test and inspection must
be rejected and removed from hazardous materials service unless the
meter prover is adequately repaired, and thereafter, a successful test
is conducted in accordance with the requirements of this section.
    (6) Prior to any repair work, the meter prover must be emptied of
any hazardous material. A meter prover containing flammable lading must
be purged.
    (7) Each meter prover successfully completing the external visual
inspection and the pressure test must be marked with the test date
(month/year), and the type of test or inspection as follows:
    (i) V for external visual inspection; and
    (ii) P for pressure test.
    The marking must be on the side of a tank or the largest piping
component in letters 32 mm (1.25 inches) high on a contrasting
background.
    (8) The owner must retain a record of the most recent external
visual inspection and pressure test until the next test or inspection
of the same type is successfully completed. The test or inspection
report must include the following:
    (i) Serial number or other meter prover identifier;
    (ii) Type of test or inspection performed;
    (iii) Test date (month/year);
    (iv) Location of defects found, if any, and method used to repair
each defect;
    (v) Name and address of person performing the test or inspection;
    (vi) Disposition statement, such as ``Meter Prover returned to
service'' or ``Meter Prover removed from service''.

[[Page 27214]]


0
13. In Sec.  173.12, revise paragraphs (b) and (e), redesignate
paragraph (f) as new paragraph (g), and add new paragraph (f) to read
as follows:


Sec.  173.12  Exceptions for shipment of waste materials.

* * * * *
    (b) Lab packs. (1) Waste materials prohibited by paragraph (b)(3)
of this section are not authorized for transport in packages authorized
by this paragraph (b). Waste materials classed as Class or Division 3,
4.1, 4.2, 4.3, 5.1, 5.2, 6.1, 8, or 9 are excepted from the
specification packaging requirements of this subchapter for combination
packagings if packaged in accordance with this paragraph (b) and
transported for disposal or recovery by highway, rail or cargo vessel.
In addition, a generic description from the Sec.  172.101 Hazardous
Materials Table may be used in place of specific chemical names, when
two or more chemically compatible waste materials in the same hazard
class are packaged in the same outside packaging.
    (2) Combination packaging requirements:
    (i) Inner packagings. The inner packagings must be either glass,
not exceeding 4 L (1 gallon) rated capacity, or metal or plastic, not
exceeding 20 L (5.3 gallons) rated capacity. Inner packagings
containing liquid must be surrounded by a chemically compatible
absorbent material in sufficient quantity to absorb the total liquid
contents.
    (ii) Outer packaging. Each outer packaging may contain only one
class of waste material. The following outer packagings are authorized
except that Division 4.2 Packing Group I materials must be packaged
using UN standard steel or plastic drums tested and marked to the
Packing Group I performance level for liquids or solids; and bromine
pentafluoride and bromine trifluoride may not be packaged using UN 4G
fiberboard boxes:
    (A) A UN 1A2 or UN 1B2 metal drum, a UN 1D plywood drum, a UN 1G
fiber drum, or a UN 1H2 plastic drum, tested and marked to at least the
Packing Group III performance level for liquids or solids;
    (B) At a minimum, a double-walled UN 4G fiberboard box made out of
500 pound burst-strength fiberboard fitted with a polyethylene liner at
least 3 mils (0.12 inches) thick and when filled during testing to 95
percent capacity with a solid material, successfully passes the tests
prescribed in Sec. Sec.  178.603 (drop) and 178.606 (stacking), and is
capable of passing the tests prescribed in Sec.  178.608 (vibration) to
at least the Packing Group II performance level for liquids or solids;
or
    (C) A UN 11G fiberboard intermediate bulk container (IBC) or a UN
11HH2 composite IBC, fitted with a polyethylene liner at least 6 mils
(0.24 inches) thick, that successfully passes the tests prescribed in
Subpart O of Part 178 and Sec.  178.603 to at least the Packing Group
II performance level for liquids or solids; a UN 11HH2 is composed of
multiple layers of encapsulated corrugated fiberboard between inner and
outer layers of woven coated polypropylene.
    (iii) The gross weight of each completed combination package may
not exceed 205 kg (452 lbs).
    (3) Prohibited materials. The following waste materials may not be
packaged or described under the provisions of this paragraph (b): a
material poisonous-by-inhalation, a Division 6.1 Packing Group I
material, chloric acid, and oleum (fuming sulfuric acid).
* * * * *
    (e) Segregation requirements. Waste materials packaged according to
paragraph (b) of this section and transported in conformance with this
paragraph (e) are not subject to the segregation requirements in
Sec. Sec.  174.81(d), 176.83(b), and 177.848(d) if blocked and braced
in such a manner that they are separated from incompatible materials by
a minimum horizontal distance of 1.2 m (4 feet) and the packages are
loaded at least 100 mm (4 inches) off the floor of the freight
container, unit load device, transport vehicle, or rail car. The
following conditions specific to incompatible materials also apply:
    (1) General restrictions. The freight container, unit load device,
transport vehicle, or rail car may not contain any Class 1 explosives,
Class 7 radioactive material, or uncontainerized hazardous materials;
    (2) Waste cyanides and waste acids. For waste cyanides stored,
loaded, and transported with waste acids:
    (i) The cyanide or a cyanide mixture may not exceed 2 kg (4.4
pounds) net weight per inner packaging and may not exceed 10 kg (22
pounds) net weight per outer packaging; a cyanide solution may not
exceed 2 L (0.6 gallon) per inner packaging and may not exceed 10 L
(3.0 gallons) per outer packaging; and
    (ii) The acids must be packaged in lab packs in accordance
paragraph (b) of this section or in single packagings authorized for
the acid in Column (8B) of the Sec.  172.101 Hazardous Materials Table
of this subchapter not to exceed 208 L (55 gallons) capacity.
    (3) Waste Division 4.2 materials and waste Class 8 liquids. For
waste Division 4.2 materials stored, loaded, and transported with waste
Class 8 liquids:
    (i) The Division 4.2 material may not exceed 2 kg (4.4 pounds) net
weight per inner packaging and may not exceed 10 kg (22 pounds) net
weight per outer packaging; and
    (ii) The Class 8 liquid must be packaged in lab packs in accordance
with paragraph (b) of this section or in single packagings authorized
for the material in Column (8B) of the Sec.  172.101 Hazardous
Materials Table of this subchapter not to exceed 208 L (55 gallons)
capacity.
    (4) Waste Division 6.1 Packing Group I, Hazard Zone A material and
waste Class 3, Class 8 liquids, or Division 4.1, 4.2, 4.3, 5.1 and 5.2
materials. For waste Division 6.1 Packing Group I, Hazard Zone A
material stored, loaded, and transported with waste Class 8 liquids, or
Division 4.2, 4.3, 5.1 and 5.2 materials:
    (i) The Division 6.1 Packing Group I, Hazard Zone A material must
be packaged in accordance with Sec.  173.226(c) of this subchapter and
overpacked in a UN standard steel or plastic drum meeting the Packing
Group I performance level;
    (ii) The Class 8 liquid must be packaged in lab packs in accordance
with paragraph (b) of this section or in single packagings authorized
for the material in Column (8B) of the Sec.  172.101 Hazardous
Materials Table of this subchapter not to exceed 208 L (55 gallons)
capacity.
    (iii) The Division 4.2 material may not exceed 2 kg (4.4 pounds)
net weight per inner packaging and may not exceed 10 kg (22 pounds) net
weight per outer packaging;
    (iv) The Division 5.1 materials may not exceed 2 kg (4.4 pounds)
net weight per inner packaging and may not exceed 10 kg (22 pounds) net
weight per outer packaging. The aggregate net weight per freight
container, unit load device, transport vehicle, or rail car may not
exceed 100 kg (220 pounds);
    (v) The Division 5.2 material may not exceed 1 kg (2.2 pounds) net
weight per inner packaging and may not exceed 5 kg (11 pounds) net
weight per outer packaging. Organic Peroxide, Type B material may not
exceed 0.5 kg (1.1 pounds) net weight per inner packaging and may not
exceed 2.5 kg (5.5 pounds) net weight per outer packaging. The
aggregate net weight per freight container, unit load device, transport
vehicle, or rail car may not exceed 50 kg (110 pounds).

[[Page 27215]]

    (f) Additional exceptions. Lab packs conforming to the requirements
of this section are not subject to the following:
    (1) The overpack marking and labeling requirements in Sec.
173.25(a)(2) of this subchapter when secured to a pallet with shrink-
wrap or stretch-wrap except that labels representative of each Hazard
Class or Division in the overpack must be visibly displayed on two
opposing sides.
    (2) The restrictions for overpacks containing Class 8, Packing
Group I material and Division 5.1, Packing Group I material in Sec.
173.25(a)(5) of this subchapter. These waste materials may be
overpacked with other materials.
    (g) Household waste. Household waste, as defined in Sec.  171.8 of
this subchapter, is not subject to the requirements of this subchapter
when transported in accordance with applicable state, local, or tribal
requirements.

0
14. In Sec.  173.13, revise paragraph (c)(1)(ii) to read as follows:


Sec.  173.13  Exceptions for Class 3, Division 4.1, 4.2, 4.3, 5.1, 6.1,
and Classes 8 and 9 materials.

* * * * *
    (c) * * *
    (1) * * *
    (ii) The inner packaging must be placed in a hermetically sealed
barrier bag which is impervious to the lading, and then wrapped in a
non-reactive absorbent material in sufficient quantity to completely
absorb the contents of the inner packaging. Alternatively, the inner
packaging may first be wrapped in a non-reactive absorbent material and
then placed in the hermetically sealed barrier bag. The combination of
inner packaging, absorbent material, and bag must be placed in a snugly
fitting metal can.
* * * * *

0
15. In Sec.  173.31, revise paragraph (d)(1)(vi) to read as follows:


Sec.  173.31   Use of tank cars.

* * * * *
    (d) * * *
    (1) * * *
    (vi) The pressure relief device, including a careful inspection of
the rupture disc in non-reclosing pressure relief devices, for
corrosion or damage that may alter the intended operation of the
device. The rupture disc is not required to be removed prior to visual
inspection if the tank car contains the residue, as defined in Sec.
171.8 of this subchapter, of a Class 8, PG II or PG III material with
no subsidiary hazard or the residue of a Class 9 elevated temperature
material;
* * * * *
0
16. In Sec.  173.306, redesignate paragraph (k) as paragraph (l) and
add new paragraph (k) to read as follows:


Sec.  173.306  Limited quantities of compressed gases.

* * * * *
    (k) Aerosols for recycling or disposal. Aerosols, as defined in
Sec.  171.8 of this subchapter, containing a limited quantity which
conforms to the provisions of paragraph (a)(3), (a)(5), (b)(1), (b)(2),
or (b)(3) of this section are not subject to the 30 kg (66 pounds)
gross weight limitation when transported by motor vehicle for purposes
of recycling or disposal under the following conditions:
    (1) The strong outer packaging and its contents must not exceed a
gross weight of 500 kg (1,100 pounds);
    (2) Each aerosol container must be secured with a cap to protect
the valve stem or the valve stem must be removed; and
    (3) The packaging must be offered for transportation or transported
by--
    (i) Private or contract motor carrier; or
    (ii) Common carrier in a motor vehicle under exclusive use for such
service.
    (l) For additional exceptions, also see Sec.  173.307.

0
17. Add new Sec.  173.310 to read as follows:


Sec.  173.310  Exceptions for radiation detectors.

    Radiation detectors, radiation sensors, electron tube devices, or
ionization chambers, herein referred to as ``radiation detectors,''
that contain only Division 2.2 gases, are excepted from the
specification packaging in this subchapter and, except when transported
by air, from labeling and placarding requirements of this subchapter
when designed, packaged, and transported as follows:
    (a) Radiation detectors must be single-trip, hermetically sealed,
welded metal inside containers that will not fragment upon impact.
    (b) Radiation detectors must not have a design pressure exceeding
4.83 MPa (700 psig) and a capacity exceeding 355 fluid ounces (641
cubic inches). They must be designed and fabricated with a burst
pressure of not less than three times the design pressure if the
radiation detector is equipped with a pressure relief device, and not
less than four times the design pressure if the detector is not
equipped with a pressure relief device.
    (c) Radiation detectors must be shipped in a strong outer packaging
capable of withstanding a drop test of at least 1.2 meters (4 feet)
without breakage of the radiation detector or rupture of the outer
packaging. If the radiation detector is shipped as part of other
equipment, the equipment must be packaged in strong outer packaging or
the equipment itself must provide an equivalent level of protection.
    (d) Emergency response information accompanying each shipment and
available from each emergency response telephone number for radiation
detectors must identify those receptacles that are not fitted with a
pressure relief device and provide appropriate guidance for exposure to
fire.

PART 174--CARRIAGE BY RAIL

0
18. The authority citation for part 174 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.


0
19. In Sec.  174.81, revise paragraph (c) to read as follows:


Sec.  174.81  Segregation of hazardous materials.

* * * * *
    (c) Except as provided in Sec.  173.12(e) of this subchapter,
cyanides, cyanide mixtures or solutions may not be stored, loaded and
transported with acids; Division 4.2 materials may not be stored,
loaded and transported with Class 8 liquids; and Division 6.1 Packing
Group I, Hazard Zone A material may not be stored, loaded and
transported with Class 3 material, Class 8 liquids, and Division 4.1,
4.2, 4.3, 5.1 or 5.2 material.
* * * * *

PART 176--CARRIAGE BY VESSEL

0
20. The authority citation for part 176 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.

0
21. In Sec.  176.83, revise paragraph (a)(11) to read as follows:


Sec.  176.83  Segregation.

    (a) * * *
    (11) Certain exceptions from segregation for waste cyanides or
waste cyanide mixtures or solutions transported with acids; waste
Division 4.2 materials transported with Class 8 liquids; and waste
Division 6.1 Packing Group I, Hazard Zone A material transported with
waste Class 3 material, Class 8 liquids, and Division 4.1, 4.2, 4.3,
5.1 or 5.2 material are set forth in Sec.  173.12(e) of this
subchapter.
* * * * *

[[Page 27216]]

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
22. The authority citation for part 177 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.


0
23. In Sec.  177.848, revise paragraph (c) to read as follows:


Sec.  177.848  Segregation of hazardous materials.

* * * * *
    (c) In addition to the provisions of paragraph (d) of this section
and except as provided in Sec.  173.12(e) of this subchapter, cyanides,
cyanide mixtures or solutions may not be stored, loaded and transported
with acids; Division 4.2 materials may not be stored, loaded and
transported with Class 8 liquids; and Division 6.1 Packing Group I,
Hazard Zone A material may not be stored, loaded and transported with
Class 3 material, Class 8 liquids, and Division 4.1, 4.2, 4.3, 5.1 or
5.2 material.
* * * * *

PART 179--SPECIFICATIONS FOR TANK CARS

0
24. The authority citation for part 179 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.


0
25. Revise Sec.  179.13 to read as follows:


Sec.  179.13  Tank car capacity and gross weight limitation.

    Except as provided in this section, tank cars, built after November
30, 1970, or any existing tank cars that are converted, may not exceed
34,500 gallons (130,597 L) capacity or 263,000 pounds (119,295 kg)
gross weight on rail.
    (a) For other than tank cars containing poisonous-by-inhalation
material, a tank car may be loaded to a gross weight on rail of up to
286,000 pounds (129,727 kg) upon approval by the Associate
Administrator for Safety, Federal Railroad Administration (FRA). Tank
cars must conform to the conditions of the approval and must be
operated only under controlled interchange conditions agreed to by
participating railroads.
    (b) Tank cars containing poisonous-by-inhalation material meeting
the applicable authorized tank car specifications listed in Sec.
173.244(a)(2) or (3), or Sec.  173.314(c) or (d) may have a gross
weight on rail of up to 286,000 pounds (129,727 kg). Tank cars
exceeding 263,000 pounds and up to 286,000 pounds gross weight on rail
must meet the requirements of AAR Standard S-286, Free/Unrestricted
Interchange for 286,000 lb Gross Rail Load Cars (IBR; see Sec.  171.7
of this subchapter). Any increase in weight above 263,000 pounds may
not be used to increase the quantity of the contents of the tank car.

    Issued in Washington, DC on May 7, 2010, under authority
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2010-11570 Filed 5-13-10; 8:45 am]
BILLING CODE 4910-60-P

